Grady v. Irvine

• Decision Date: 08 April 1958
• Docket Number: No. 7584.,7584.
• Citation: 254 F.2d 224
• Parties: Ellis B. GRADY, Jr., Administrator, c.t.a., of Margarette W. Rodgers, deceased, Appellant, v. Richard Eugene IRVINE, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

254 F.2d 224 (1958)

Ellis B. GRADY, Jr., Administrator, c.t.a., of Margarette W. Rodgers, deceased, Appellant, v. Richard Eugene IRVINE, Appellee.

No. 7584.

United States Court of Appeals Fourth Circuit.

Argued March 3, 1958.

Decided April 8, 1958.

Geo. E. Allen, and Allen, Allen, Allen & Allen, Richmond, Va., on brief, for appellant.

Wayt B. Timberlake, Jr., Staunton, Va., for appellee.

Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.

HAYNSWORTH, Circuit Judge.

This action was commenced in the District Court for the Western District of Virginia by a citizen of Maryland against a citizen of Virginia for the recovery of damages for personal injury. During the pendency of the action, the plaintiff died as a result of the injuries sustained in the accident. Counsel for the plaintiff then filed a motion to substitute, as plaintiff, a citizen of Virginia, the duly appointed administrator c.t.a. of the estate of the original plaintiff, and to amend the complaint, pursuant to the requirements of Section 8-640 of the Code of Virginia, so as to convert the action into one for wrongful death under Sections 8-633, 8-634. Upon its own initiative, the District Court raised the question of jurisdiction and concluded, after consideration, that the motion to substitute the personal representative as plaintiff and to amend the complaint should be granted, but, there being no longer diversity of citizenship, the action should be dismissed for want of jurisdiction. The plaintiff has appealed from the order of dismissal.

It is settled that where a personal representative initially files an action for wrongful death, it is the residence of the representative, not that of his decedent, which is relevant in the resolution, for purposes of federal jurisdiction, of the question of diversity of citizenship. Mecom v. Fitzsimmons Drilling Company, 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233. That this action for wrongful death was commenced by an allowance of an amendment to the pleadings in a pending action of a different nature rather than by the filing of a new complaint and the service of original process, does not make the residence of the personal representative irrelevant or that of his decedent determinative of the jurisdictional question.

For purposes of federal jurisdiction, the requirement of diversity of citizenship is ordinarily determined by the situation existing at the time the action is commenced. Once federal jurisdiction has attached, it is not defeated by a subsequent change in the citizenship of one of the parties, Mollan Mullen v. Torrance, 9 Wheat. 537, 6 L.Ed. 154, nor by a formal substitution of a personal representative of nondiverse citizenship for an original party who dies while the cause is pending. Smith v. Sperling, 354 U.S. 91, 77 S.Ct. 1112, 1 L.Ed.2d 1205. There is great difference, however, between a formal substitution of a personal representative to prosecute the action in aid of the same right asserted by his decedent and an amendment or supplemental bill which changes the nature of the right asserted and alters the substance of the action. In the latter instance, jurisdiction should be re-examined in the light of the citizenship of all of the indispensable parties including those introduced upon allowance of the new pleading. See 4 Moore's Federal Practice, 2nd Ed., 25.05. It is analogous to the rule which calls for a re-examination of the diversity requirement after the joinder of an indispensable party. See Rule 19(b), Federal Rules of Civil Procedure, 28 U.S.C.A.; Schwartz v. Metropolitan Life Insurance Co., D.C.D. Mass., 2 F.R.D. 167; Small v. Frick, D.C.E.D.S.C., 40 F.Supp. 778; Crecelius v. New Albany Mach. Mfg. Co., 7 Cir., 4 F.2d 369; Cohen v. Maryland Casualty Co. of Baltimore, D.C.E.D.S.C., 4 F.2d 564; Atwood v. Rhode Island Hospital Trust Co., 1 Cir., 275 F. 513, 24 A.L.R. 156; Fryer v. Weakley, 8 Cir., 261 F. 509; Himes v. Schmehl, 3 Cir., 257 F. 69; Patterson v. Delaware & Hudson Co., 3 Cir., 251 F. 255; Hawes v. First Nat. Bank of Madison, 8 Cir., 229 F. 51.

The statutes of Virginia do not, in any real sense, provide for the survival of a right of action for personal injury if the injured person dies as a result of the injury. Sections 8-628.1 and 8-640 of the Code of Virginia provide:

(8-628.1) "* * * No cause of action for injuries to person or property shall be lost because of the death of the person in whose favor the cause of action existed, provided, however, in such action no recovery can be had for mental anguish, pain or suffering * * *."

(8-640) "* * * (A)nd when an action is brought by a person injured for damage caused by the wrongful act, neglect or default of any person or corporation and the person injured dies pending the action, the action shall not abate by reason of his death, but, his death being suggested, it may be revived in the name of his personal representative. If the death resulted from the injury, the motion for judgment and other pleadings shall be amended so as to conform to an action under §§ 8-633 and 8-634, and the case proceeded with as if the action had been brought under such sections. But in such cases there shall be but one recovery for the same injury."

But the Supreme Court of Virginia, interprets the terms "cause of action" and "action," as used in these statutes, as encompassing only such rights of action as are otherwise granted or contemplated by statute. They do not include every right of action which, at any time, may have existed as a result of the tortious conduct. Unlike the courts of many other states,¹ the Supreme Court of Virginia construes its wrongful death statute as creating no new "cause of action" but a "right of action" where no right before existed. The "cause of action" is said to be complete and accrued the moment the tort is committed, but the "right of action" for wrongful death does not arise during the continued life of the injured person, nor does the injured person's "right of action" for personal injury survive his death, if death results from the injury. Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S.E. 269, 272; Beavers, Adm'x v. Putnam's Curator, 110 Va. 713, 67 S.E. 353; Virginia Iron, Coal & Coke Co. v. Odle's Adm'r, 128 Va. 280, 105 S.E. 107; Mercer v. City of Richmond, 152 Va. 736, 148 S.E. 803, 64 A.L.R. 1054; Seymour and Burford Buick Corporation v. Richardson, 194 Va. 709, 75 S.E.2d 77; Ruebush v. Funk, 4 Cir., 63 F.2d 170; Atlantic Greyhound Lines, Inc., v. Keesee, 72 App.D.C. 45, 111 F.2d 657. The Supreme Court of Virginia in Anderson v. Hygeia...